I invite you to read the conversation I had with Dr. Bartosz Pudo, an attorney specializing in copyright law and personal data protection.
In this conversation, we cover the basics of Polish copyright law, because, as I have observed, people who photograph often struggle with this area of law. To protect your rights, it’s essential to have at least a basic understanding of the key concepts and terms. And it doesn’t matter whether you’re a professional or an amateur. I wholeheartedly encourage signing contracts—but contracts that are tailored to your needs. It’s worth seeking advice from lawyers specializing in copyright law.
Joanna Nowicka – I’m glad you agreed to this conversation. We met during a portrait session I did for you, but the reason for this discussion was a certain event. Some time ago, I was invited to be part of the jury for a photography competition. I got familiar with the competition posted on the organizer’s website and also took a look at the participants’ regulations. There were clauses that I found unfair to the participants, and it seemed as if the company, through this competition, wanted to gather a large stock of photos of their objects for free.
The regulations stated that sending and submitting one’s works would be a consent to transfer the economic copyright of the submitted photos. Additionally, there was a clause stating that upon the organizer’s request, the participant must sign the transfer of economic copyright to the organizer. There were also several inconsistencies, which you also pointed out—mixing up the concepts of a license with the sale of economic rights.
I raised my concerns with the person who invited me to the jury. In response, I was told that the regulations had been prepared by a lawyer and that everything should be fine. My conclusion was clear. The lawyer had safeguarded the organizer’s interests without any concern for the participants. I would never participate in a competition with such terms. I believe it is simply unfair. So, I couldn’t agree to be part of the jury. The regulations couldn’t be changed because they had already been published. I refused.
I’ll skip the fact that participation in the jury was supposed to be unpaid and the meeting was scheduled during work hours, but that’s a topic for another conversation.
Returning to copyright law in photography, let’s start with the basic concepts.
Bartosz Pudo – For many years, photography and its results were not treated as creative work. Since photography replicates reality, what’s there to protect? Today, we know well that this approach was wrong. Full protection in the area of copyright law has only been in place since the introduction of the current law, in 1994.
Earlier regulations contained a formula for conditionally granting protection to photography, and the condition for that was the first print, the original stamped with a copyright reservation. For example, photographs taken at a photographic studio with the studio’s stamp. This no longer functions today.
JN – Can we consider information in the file info of a photo as a contemporary “stamp”? I come from press photography, where we always added metadata to the photo file, including what’s in the photo, where and when it was taken, as well as who the author was and any restrictions regarding the distribution of the photo by photo agencies.
BP – Today, this is more of a workshop element, which can, of course, be important. It can identify who holds the moral and economic copyrights. It also helps define the terms of the license to share the photo, such as in which contexts the photo can be published and which contexts it cannot.
JN – Okay. Now, let’s bring up the concept of moral rights. What are they?
BP – This is one of my favorite topics; moral rights were the subject of my doctoral dissertation.
JN – Please condense this knowledge into a few key points.
BP – Sure, I’ll try 🙂 In the Polish model, we have a clear, distinct, and rather strong division between moral rights and economic rights. These are two different categories of rights. Moral rights protect the non-transferable and non-alienable connection between the author and the work.
JN – So, since I’m the author of a photo, I have the inalienable right to sign it with my name, or in some other way, such as with a pseudonym?
BP – Yes, that’s one manifestation of the author’s connection to the work. I understand this connection as a legally protected fact of a specific author creating a specific work with certain content, meaning, etc. And these rights cannot be transferred.
The right to authorship means that the author can sign the work, and no one else who is not the author can sign it.
JN – I’ve noticed, especially on the internet, publications where a photo is signed, for example, with “photo: archive” or “photo: press materials.”
BP – We’re definitely entering the realm of potential infringement of the right to authorship. Whether the work should be signed with the author’s name, pseudonym, or anonymously—because the decision to publish the work anonymously is a form of exercising moral rights—should always be the author’s decision.
JN – I would risk saying that in such cases, it’s more of a neglect on the publisher’s part, rather than the creator’s intention.
BP – Yes, that’s usually the case. And one can consider enforcing their rights. The problem is also that, in recent years, there’s been a tendency to marginalize moral rights due to the nature of photography as a commodity.
JN – I’ll refer to my own experiences. When my business clients publish portraits in magazines, books, other print publications, or digital articles, that’s the place where they should credit me. However, I know that credits are very rarely used, for instance, on websites, in graphics published on social media, or on billboards. I can understand why that is. Such processed, commercial uses where the final image is very different from the original photo may not require a credit, and I don’t have an issue with that (though I’d point out that tagging the authors on social media definitely increases their reach, so it might be worth it). However, I treat my personal projects differently. I do not agree to any interference with these photos or any processing without an agreement with me, and they must always be credited.
So, can an agreement specify in which types of publications the photo should absolutely be credited, and where the creator might waive this?
BP – I believe so. It’s worth defining that.
To summarize, moral rights include: the right to authorship, the right to be credited with the author’s name or pseudonym, or the decision to publish anonymously. They also include the right to the integrity of the work, meaning whether we agree to changes in the content or form, or want to preserve the integrity of the work. They also include the right to proper use of the work, such as ensuring that a photo won’t be used in a completely different context, which could alter the reception of the photo. And lastly, they include the right to first publication.
JN – Is the right to integrity of the work the same as the derivative work right?
BP – No. For example, cropping a photo or applying an Instagram filter would be an infringement on the integrity of the work. The derivative work right refers to creating a completely new work from the original, such as making a collage or graphic out of a photo—turning the photo into an element of a larger work or transforming it creatively into a different form.
JN – Let’s now move to economic rights.
BP – This includes, among other things, the right to receive compensation for the use of the work.
JN – A small digression at the beginning. When I’m asked about transferring economic rights, people often use a shortcut—what I assume is a mental shortcut—saying “taking over the copyright.” So, this term is at least imprecise?
BP – Yes, I encounter this too, even in contracts written and drafted by professional lawyers. I would classify this term as an error that should not occur. The correct term is “economic copyright.” Copyright law is a niche area, but thankfully, awareness of it is growing.
JN – Another digression from my professional life. I recently worked for a book publisher, doing a series of portraits of an author. We agreed on the contract terms, the publisher signed it, and sent me one copy. I thought it was a mistake—I should have kept one copy and sent back the signed one. It turned out that I was wrong. I was informed that the publisher only needs the contract if it’s the sole document for financial settlement. Since I issue an invoice, that’s enough. However, the invoice didn’t include any terms about copyright, such as licensing conditions regarding the fields of exploitation of the photos. I was surprised by this. My inquiry about licensing issues went unanswered.
BP – That’s really strange, especially considering the profile of this company. A publisher deals with copyright law regularly. Apparently, one department handles photo sessions, and another handles book publishing. These two areas didn’t meet. It’s hard to guess the reason, but licensing issues are very important here. They paid for the photo session, but they might not know how they’re entitled to use the photos. Paying for a session does not equate to the right to use the photos everywhere and for everything. It’s not that they paid, so the photos are theirs, and they can do whatever they want with them. Licensing arrangements are very important in this case. We live in a digital world, but a good example would be—just to make it easier to illustrate—the situation where I go to a bookstore and buy a book. Just because I bought a copy of the book doesn’t mean I can copy it and publish it.
JN – Well, the example of a book is clear and straightforward, but in the world of photography, it’s not always so clear. I admit that clients don’t always understand these matters, so I am particularly keen that the agreement I offer clients is clear, simple, without legal jargon, and written in an understandable, plain language.
BP – It’s definitely worth having agreements, really. Especially since not everyone knows that granting an exclusive license or selling economic rights requires a written form under penalty of invalidity. It has to be in writing, on paper, not a scan sent by email, although a qualified electronic signature might work. That’s a requirement; otherwise, there’s no transfer of rights. A handshake won’t do.
JN – I sign agreements, and they always include licensing terms, specifying how the client will use the photographs. I should add that this scope is fairly broad in my case and is meant to cover the client’s needs in professional, informational, image-related, marketing, and sales activities. I want the client to use the photos in a way that benefits them, so I don’t limit the license, for example, to just online use. I tend to offer more rather than less, at the regular price, with a few exceptions, of course, but those exceptions go beyond the standard idea of image-related activities. However, as a rule, I don’t sell economic rights.
When it comes to portrait photography, the agreement always includes whether I can use the portraits in my portfolio. It’s common practice in larger corporations or state-owned companies that I don’t get such consent. And of course, I accept that situation. But sometimes, it’s used as an argument for me to transfer the economic rights to the client, because “I won’t be using those photos anyway.” But that’s a completely different thing; I won’t use them, but that doesn’t mean the client can do anything with them.
Interestingly, clients who want to take the economic rights often talk about their “transfer” rather than “purchase.”
BP – Yes, the pricing can differ here. It will be different if you’re purchasing a license for a specific area of use of the photograph for a set period, and different if you’re buying full economic rights. The essence of economic copyright is precisely the areas of exploitation and deriving financial benefits from the work. It has a business dimension.
You can buy a license for, say, a year, five years, or for an indefinite period (not “indefinitely,” but without specifying an end time for the license). And for specific areas of exploitation, for example, only for online use.
You can also specify, for example, when working with an NGO, that you agree to the use of photographs for a “noble cause,” i.e., for statutory activities, but you don’t agree to their use in business activities of the entity. Such a definition of the scope of use can also be included. So as you can see, there are many possibilities, and this could be the basis for differences in pricing.
JN – It often happens that clients, when doing a photo shoot, don’t know all the areas in which the photos might be used, and those will emerge as things develop. So right now, they definitely know they need portraits for a website, but in the future, there might be publications in trade magazines, for example. So I don’t limit the license, for instance, only to the online space, to have another price tier that includes, for example, all kinds of prints. It makes collaboration easier for me; I prefer it this way, and it’s likely more convenient for the clients too, to have a variety of promotional activities in one package, both online and in print. What I exclude are political campaigns, outdoor advertising, or the sale of economic rights, for example, profiting from reselling my photos.
BP – Ok, it’s always a matter of agreements. Note that you can sell economic rights for selected areas of exploitation or, for example, for a specific territory. It’s essential that they are clearly listed in the agreement—what form they will be reproduced and distributed in. The phrase “all areas of exploitation” doesn’t settle the matter. We should be specific. Techniques change, and technology for media carriers changes, so it’s not sufficient to just write “reproduction in a certain technique” from the statute. What technique? We have to specify it.
JN – So I understand that regardless of whether we grant a license or sell economic rights, the areas of exploitation of the photos should be written out in detail.
BP – They must be.
JN – So we name them specifically, for example, use on a website, in social media, in a book publication, etc.
BP – It’s better to name them in detail than refer to general terms. General terms won’t protect future areas of exploitation, which, due to technological developments, we may not even know about yet, much less name. So it’s hard to decide on something we don’t even know yet.
JN – Also, from my experience, if the client has those areas listed in the agreement in detail, in simple language, according to how we name those places of publication, it’s clear to them, understandable, and doesn’t cause confusion. For me, it’s important that we understand each other with the client.
But returning to economic rights, I understand that the difference between them and granting a license is that selling them means I can never use those photographs again?
BP – If you sell economic rights, for example, to reproduce them through printing, you can’t then print them out and keep them in your portfolio in the studio. Unless it’s for your own personal collection, but that’s not really the point of building a portfolio. In business, you can no longer use them.
JN – Let me illustrate this. I sell economic rights to a photograph of a building for many areas of exploitation I know today. Then I want to publish it in my offer and on my website. Can I or can’t I?
BP – You can’t. You’d be infringing the economic rights, which now belong to someone else.
JN – Let’s return to the photography contest mentioned earlier, which was the starting point for this conversation. There was a clause saying that at the organizer’s request, the participant must sign over the economic rights. And another that sending a photograph to the contest is equivalent to transferring those rights.
BP – The second provision doesn’t have legal effect because it’s contrary to copyright law.
JN – I assume that the people who sent their photos to the contest didn’t know how to interpret these provisions and what they were agreeing to.
BP – Probably, but there might also have been some who knew that economic rights can’t be transferred just by submitting a photo to a contest.
JN – I imagine it’s more the first option. Ok, but now we have a situation where the organizer reviews the submitted photographs, rewards some through the contest, but also takes a whole bunch of good material and asks participants to sign over their economic rights, thus adding photos to their archives for commercial use without paying. The authors didn’t win anything in the contest and no longer own their photographs. The lawyer secured the organizer’s interests, ignoring the participants’ interests. And in my opinion, such a contest is a collaboration; without the submitted works, there wouldn’t be a contest. Is this behavior simply unethical?
BP – That’s not a question for a lawyer, but for an ethicist (laughs). But as a creator, I wouldn’t participate in that contest.
I assume there was no reflection or partnership approach there, and maybe the lawyer who prepared it didn’t specialize in copyright law. I don’t know.
But going back to the conscious sale of economic rights—I generally wouldn’t want this fact to sound like something bad. In certain branches of business, like advertising, it’s standard. An advertising agency buys rights because they have such an agreement with the client. Or in large corporations, there are corporate standards with model agreements, even if they don’t need those rights and won’t use them.
But even when selling economic rights, we can get a reverse, non-exclusive license from the buyer to use the photo in our portfolio.
JN – Which the rights holder can revoke?
BP – Yes, they can.
I wish creators, whose reputation and quality allow for broader negotiation, especially with big players, all the best. I see these situations from both sides. My clients are both creators and companies for whom I draft agreements for acquiring economic rights.
JN – Ok. And what is a sublicense?
BP – A sublicense is a further license. The creator grants a license to entity X, with the right to grant a sublicense. So entity X can give a license to entity Y. For example, your client is part of a capital group managing a company that is closely linked to several other companies. And then, in the point about granting sublicenses, you list the companies in the group. This is a fairly common option for granting sublicenses.
But also, if we look at the regulations of social media platforms, they generally talk about a license for everything you upload to their servers. So, in theory, this should also be included in the sublicense clause if the client wants to publish the photo on such a platform.
JN – Yes, but if I assume my client is working across many fields, different platforms, websites, and media, but every time they represent themselves and their brand or company through their portrait, I see it as the same representation.
BP – Yes, you can approach it that way. What’s important is what you agree on with the client, the specifics you set, working based on your needs and your intention to reach an agreement.
JN – That’s how I try to do it.
And is it acceptable to reach an agreement with a client and accept the terms simply by the fact that the client agrees to cooperate? The client reads the offer, participates in some action, or the assignment is so small that the formalities would take more time than the cooperation itself. Is it enough to set the terms, for example, via email? I remember – for exclusive licenses and the sale of economic rights, an agreement is necessary.
BP – For a non-exclusive license, that would be sufficient. However, you still need to remember the areas of exploitation.
JN – Approaching the end, I want to ask you if, based on your experience, you think creators and artists are generally unaware of their rights?
BP – Yes, unfortunately. I also feel that this area of law has become surrounded by stereotypes. Sometimes people refer to some meme-like situations from the internet, taking them for granted. There’s a lack of basic knowledge.
JN – It’s a shame, because being aware of this topic, even at a basic level, can protect a creator’s financial interests. But I understand that legal jargon might make people shudder, which likely discourages them from getting into the subject.
BP – Sometimes the problem is that the lawyer teaches copyright law using language aimed at lawyers, while they’re dealing with laypeople. The way of communication needs to be adjusted to the audience, and one needs to be able to explain important things in a clear and understandable way.
I also notice a problem that creators don’t consider this area of law as “theirs”; they feel it’s somewhat separate from their work – designing, photographing, creating. But it always relates to what they create.
People often use templates from the internet. Unfortunately, they’re not always adequate and sometimes contain errors. And this is about legal security. Preparing an agreement sometimes costs more than the cooperation it’s intended for, but we must point out that it also serves as a template for future agreements, securing the creator’s interests for a much longer time. One can later modify certain points to adjust it to specific cooperation conditions. So, in my opinion, this investment pays off.
Legal culture in our country is quite low, although thankfully, this awareness is changing.
JN – Thank you very much for the conversation.
March 2025
/ The translation was not consulted with an English-speaking lawyer. /